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Legal Defence

Despite what the Police have said, just because you have been charged with an offence does not mean that you will go to Jail in all cases. There may be legal defences available that may be argued to successfully defend the charge. Some examples of how we may successfully defend a charge is by proving that the police didn’t have enough evidence, the police acted improperly, a witness did not attend court, the police charged you with the wrong offence or you can rely on a recognized defence.

This section is concerned largely with the recognized legal defences that may be argued. They have been listed in the paragraphs that follow.

Self Defence

In response to many charges such as manslaughter or assault, you may argue that you committed those actions in self-defence. If the Court accepts this argument, they may dismiss the charge against you. However, self-defence is an area that is quite complicated and in order for this defence to be argued successfully, an experienced lawyer is essential. In the paragraphs below, you can find brief explanations regarding the law on self-defence as a legal defence.

Law in South Australia

Self-Defence as a legal defence may be proven if it can be shown that:

(a) The offender genuinely believed that their conduct to which the charge relates to was necessary and reasonable for a defensive purpose; and

(b) The conduct was, in the circumstances as the defendant genuinely believed them to be, reasonably proportionate to the threat that the defendant genuinely believed to exist.

Therefore, the conduct must be:

Necessary and Reasonable; for a

Defensive Purpose (this can also include defending another person); and

Reasonably Proportionate to the threat.

Duress

Duress provides a legal defence where the accused succumbs to a threat of violence and commits and offence in response to that threat. The threat may involve a serious threat to the offender or their family.

The law in South Australia

The current leading court case on duress, R v Hurley, sets out of the following elements that need to be proven to successfully argue this legal defence:

You were under a threat that death or very serious harm would be inflicted upon a human being if you did not do the act; and

In the same situation that you were in, a person of ordinary firmness would have been likely to yield to the threat in the way that you did; and

The threat was present and continuing, imminent and impending;

You reasonably apprehended that the threat would be carried out;

You were induced to commit the crime charged;

The crime was not murder nor any other crime so heinous as to be excepted from the doctrine;

You did not, by fault on your part when free from the duress, expose yourself to its application; and

You had no means, with safety to yourself, of preventing the execution of the threat.

You can see that Duress is a very complex defence to argue. It is rarely argued in criminal cases but if you think that you may have solid grounds for a duress argument as a legal defence, you should contact an experienced lawyer to find out more.

Necessity

The defence of necessity can be argued if something serious was going to happen to you if you did not commit the crime, such as murder or serious harm. This is quite a difficult offence to argue.

The Law in South Australia

The current law follows the case of R v Loughnan where it was ruled that the following elements must be satisfied for the defence of necessity to be proven:

The criminal act(s) must have been done only to avoid certain consequences which would have caused irreparable evil on the alleged offender or on others who the alleged offender was bound to protect;

The alleged offender must honestly believe on reasonable grounds that they were placed in a situation of “imminent peril;”

The acts done to avoid the imminent peril must not be out of proportion to the peril to be avoided.

These requirements are very technical and complex. A deep grasp of the legal terms is needed to fully understand these elements.

If you think that you may have a defence based on necessity, you should contact an experienced lawyer for more information

Intoxication

Intoxication is primarily based on the argument that the alleged offender’s consciousness was so impaired by the use of a drug or alcohol to the point where he or she is deemed to be criminally irresponsible.

Intoxication is an impairment of the mind resulting from the consumption of intoxicants such as drugs or alcohol. It must be noted that intoxication does not mean being “drunk.” It needs to be shown that you were far beyond a drunk state – i.e. intoxicated.

Intoxication cannot be used as a defence if it can be shown that the alleged formed an intention to commit the offence before becoming intoxicated and consumed intoxicants in order to assist them to commit the offence.

This is a very complex defence to argue and it is only available for certain types of offences. It is very important that you seek independent legal advice about this defence.

Mental Impairment

Mental Impairment is also available defence to many charges.

Mental impairment includes a mental illness, an intellectual disability or a disability or impairment of the mind resulting from senility (for example, dementia or Alzheimer’s disease). People who fit any of these categories may make an argument on the grounds of mental incompetence. In this case, they would not be criminally responsible.

The Law in South Australia

A person may be mentally incompetent to commit an offence if at the time of the conduct alleged that gives rise to the offence, the person is suffering from mental impairment and as a consequent of this the alleged offender:

Does not know the nature and quality of the conduct; or

Does not know that the conduct is wrong; or

Is unable to control the conduct.

Usually, when arguing this defence, you will need some proof that the person is mentally impaired. This is normally achieved through means such as medical reports to prove mental incompetence.

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